I would expect that if a registrant used one clause of the allocation and
eligibility rules to obtain a domain name, that this does not exclude them
from using another to keep it.

The allocation and eligibility rules are quite clear, so I would suggest
that using that as the basis of a claim against the registrant will not
work.

The only alternative that I have seen in this sort of case (if applicable
here), is to start action under Fair Trading legislation on the basis that
the registrant is involved in misleading and/or deceptive conduct.

If the registrant in question is a direct competitor to your client and is
using the domain name that is exactly the same as your client's business
trading name - then I would suggest there is possibly some strength in this
being misleading.  Of course, this can only be proven if your client held
the trading name well before the registrant obtained the domain name in
question.

At the end of the day, though, auDA always reminds us of the one critical
element in this entire process - "FIRST COME, FIRST SERVED"

Thanks...MJM


> -----Original Message-----
> From: Phil Wright [mailto:newsstuff§network.au.com]
> Sent: Friday, 10 January 2003 2:56 AM
> To: dns§lists.auda.org.au
> Subject: RE: [DNS] can anyone help me out with this query?
>
>
> I generally agree with your points Mark
>
> All except that I strongly believe it worthwhile taking things further
> on the basis that the entity that held the licence for the domain is no
> longer registered - therefore how did Dytor and Yates Real Estate obtain
> the domain when they are allegedly not the registrant?
>
> How did they obtain it?
> How does that fit with the eligibility rules? - The rules do have some
> provisions to protect against and prevent the transfer of licence etc
>
> Perhaps the registrant business flogged it off to them for some $ before
> closing shop?
>
> Phil Wright
>
>
> -----Original Message-----
> From: Mark Hughes [mailto:effectivebusiness§pplications.com.au]
> Sent: Friday, January 10, 2003 1:50 AM
> To: dns§lists.auda.org.au
> Subject: RE: [DNS] can anyone help me out with this query?
>
> Comments on a couple of different postings:
>
>
> > Under common law they can't trade under that
> > name since my clients own the business name.
>
> Your clients may own the business & company names "Gold Coast Homes",
> but
> given current practice, someone else could use "Smith's Gold Coast
> Homes" or
> "Gold Coast Homes Experts" or a similar variation.  It appears to be
> common
> practice for the Business Names folks to accept the addition of a single
> word - especially the addition of a person's name - as a difference
> substantive enough to get a new Business Name issued that is in other
> respects similar to an existing one.
>
>
> > the domain name matched a 'brand name' of his company's, although I
> was
> under
> > the impression that brand names must be registered with the
> government.
>
> No, brands don't have to be registered with the government.
>
>
>
> Note that these issues are an inevitable consequence of the decision to
> include "close and substantial connection" as an eligibility criteria
> for
> domain names in .au.
>
> Since:
>
>  a) "close and substantial connection" has no objective definition
>  b) the "close and substantial connection" criteria specifically
> includes
> products and services - e.g. brands
>  c) a common occurrence in product / service brand development is that
> brand
> development before actual launch can be lengthy in time, and done in
> secret
>
> Then its generally impractical to challenge someone's eligibility for a
> .au
> domain name (assuming its not a bad faith / passing off situation).  The
> domain name holder can retreat behind the "its a new brand currently
> under
> development - the details are commercial in confidence".
>
>
>
>
> > The people who own the domain are using it.
> > It is goldcoasthomes.com.au.
> > Their business is called Dytor and Yates Real Estate.
>
> For example, applying the "close and substantial connection" criteria to
> the
> domain name goldcoasthomes.com.au...........the com.au policy says:
>
> c) be otherwise closely and substantially connected to the registrant,
> because the domain name refers to:
> (i) a product that the registrant manufactures or sells; or
> (ii) a service that the registrant provides;
>
>
> So y'all can ask yourselves the question.....are gold coast homes a
> product
> or service that Dytor and Yates Real Estate sells / provides?
>
> Hell yes!  Gold coast homes are EXACTLY the product / service that Dytor
> and
> Yates Real Estate sells / provides.  So according to the existing policy
> for
> com.au, developed by the advisory panel and listed on the auDA web site,
> then Dytor and Yates Real Estate is eligible for the domain name
> goldcoasthomes.com.au.
>
>
>
> When you think about it for a minute or two, you realise that probably
> >98%
> of domain names in use represent / are clearly related to a product or
> service that the registrant provides (otherwise the Registrant would
> have
> little interest in that domain name).  So forget about the "company name
> /
> business name" criteria - the "close and substantial connection" clause
> covers almost all .au domain names.  All of this was inevitable once the
> "close and substantial" clause was accepted as an eligibility criteria
> in
> the .au namespace.
>
>
> Regards, Mark.
>
>
>
>
>
>
>
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